10th Circuit: Computer copying or download of child pornography is “production”
U.S. v. Schene, No. 07-6177, 2008 WL 4379509 (10th Cir. Sept. 30, 2008)
Tenth Circuit allows admission of child pornography evidence and upholds conviction.
In an Oklahoma district court, “Jay Martin Schene was convicted…of knowingly possessing material that contained an image of child pornography that was produced using materials that had been mailed, shipped, or transported in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B).” On appeal to the Tenth Circuit, Schene argued that “the evidence was insufficient to show that the images of child pornography were produced using materials that had been…transported in interstate commerce” and that “the district court abused its discretion by admitting into evidence images of child pornography.”
Following the Seventh and Ninth Circuits in United States v. Anderson, 280 F.3d 1121, 1125 (7th Cir. 2002) and United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002) respectively – which held that “computerized images are “produced”…when computer equipment…[is] used to copy or download the images” – the Tenth Circuit found that the government provided sufficient evidence to support a conviction for the production of child pornography under § 2252A(a)(5)(B).
Schene also argued that, because of his “willingness to stipulate that the [relevant] images were child pornography,” the court abused its discretion in admitting the images as evidence. The Tenth Circuit rejected this argument, holding that the government “had to prove that Schene ‘knowingly possessed’ the images of child pornography” and was therefore “entitled” to submit the images.
Accordingly, the Tenth Circuit panel upheld Schene’s conviction in the United States District Court for the Western District of Oklahoma.